Lane v Morrison [2009] HCA 29

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

BRIAN GEORGE LANE PLAINTIFF

AND

COLONEL PETER JOHN MORRISON, A MILITARY

JUDGE OF THE AUSTRALIAN MILITARY COURT

& ANOR DEFENDANTS

Lane v Morrison [2009] HCA 29

26 August 2009

C3/2008

ORDER

1. Declare that the provisions of Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth) are invalid.

2. Order that a writ of prohibition issue directed to the first defendant, Colonel Peter John Morrison, a Military Judge of the Australian Military Court, prohibiting him from proceeding further with the charges relating to the plaintiff identified in the charge sheet dated 8 August 2007 and referred to the Australian Military Court for trial.

3. Second defendant to pay the costs of the plaintiff.

Representation

A W Street SC with K S Cochrane and M J Duncan for the plaintiff (instructed by Provest Law)

S J Gageler SC, Solicitor-General of the Commonwealth with S B Lloyd SC and J G Renwick for the second defendant (instructed by Australian Government Solicitor)

Submitting appearance for the first defendant

Intervener

G T W Tannin SC with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Lane v Morrison

Constitutional law (Cth) – Judicial power of the Commonwealth – Military courts – Member of Australian Defence Force charged under Defence Force Discipline Act 1982 (Cth) ("Act") – Where hearing before Australian Military Court ("AMC"), established by s 114 of Act – Where AMC a court of record and decision subject to appeal to tribunal – Relevance of fact that AMC has criminal jurisdiction – Whether AMC exercising judicial power of the Commonwealth – Whether AMC created in accordance with Ch III of Constitution.